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Federal Communications Commission FCC 11-28

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Federal Communications Commission FCC 11-28 Federal Communications Commission _ FCC 11-28 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Policies to Promote Rural Radio Service and to ) MB Docket No. 09-52 Streamline Allotment and ) RM-11528 Assignment Procedures ) SECOND REPORT AND ORDER, FIRST ORDER ON RECONSIDERATION, AND SECOND FURTHER NOTICE OF PROPOSED RULE MAKING Adopted: March 3, 2011 Released: March 3, 2011 Comment Date: [30 days after date of publication in the Federal Register] Reply Comment Date: [60 days after date of publication in the Federal Register] By the Commission: Chairman Genachowski and Commissioners Copps, McDowell, Clyburn and Baker issuing separate statements. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION.................................................................................................................................. 1 II. BACKGROUND.................................................................................................................................... 4 III. DISCUSSION......................................................................................................................................... 6 A. Extend the Tribal Priority to Tribes without “Tribal Lands”............................................................. 6 Background ...................................................................................................................................... 6 Discussion........................................................................................................................................ 8 B. Section 307(b) Proposals. ............................................................................................................... 12 Background .................................................................................................................................... 12 Discussion...................................................................................................................................... 19 1. Proposals for New AM Facilities ....................................................................................... 30 2. Proposals for New FM Allotments..................................................................................... 34 3. Proposals to Change Community of License...................................................................... 36 C. Prohibit FM Translator “Band Hopping” Applications ................................................................... 41 Background .................................................................................................................................... 41 Discussion...................................................................................................................................... 43 D. Codify Technical Standards for Determining AM Nighttime Mutual Exclusivity among Window-Filed AM Applications.................................................................................................... 46 Background .................................................................................................................................... 46 Discussion...................................................................................................................................... 50 IV. FIRST ORDER ON RECONSIDERATION....................................................................................... 54 Background .................................................................................................................................... 54 Discussion...................................................................................................................................... 57 V. SECOND FURTHER NOTICE OF PROPOSED RULE MAKING.................................................... 60 Federal Communications Commission _ FCC 11-28 Background .................................................................................................................................... 60 Discussion...................................................................................................................................... 62 VI. ADMINISTRATIVE MATTERS ........................................................................................................ 66 A. Second Report and Order…………………..………………………...……………………..……66 1. Final Regulatory Flexibility Analysis.…………… .... ………………………………………..66 2. Final Paperwork Reduction Act of 1995 Analysis.................................................................... 67 3. Congressional Review Act........................................................................................................ 69 B. Second Further Notice of Proposed Rule Making……………………………….………………..70 1. Filing Requirements.................................................................................................................. 70 Ex Parte Rules ......................................................................................................................... 70 Comments and Reply Comments ............................................................................................ 71 Additional Information............................................................................................................ 75 2. Initial Regulatory Flexibility Analysis...................................................................................... 76 3. Paperwork Reduction Act Analysis .......................................................................................... 78 VII. ORDERING CLAUSES .................................................................................................................... 81 APPENDIX A – Initial Regulatory Flexibility Analysis APPENDIX B – Final Regulatory Flexibility Analysis APPENDIX C – Comments Filed in Response to NPRM APPENDIX D – Reply Comments Filed in Response to NPRM APPENDIX E – Comments and Reply Comments Filed in Response to FNPRM APPENDIX F – Final Rules I. INTRODUCTION 1. In this Second Report and Order (“Second R&O”), we continue our efforts to enhance the ability of federally recognized Native American Tribes and Alaska Native Villages (“Tribes”)1 not only to receive radio service tailored to their specific needs and cultures, but to increase ownership of such radio stations by Tribes and Tribal-owned entities. The proposals we adopt today, and those on which we seek comment, are designed to build upon the Tribal Priority we adopted in the First R&O in this proceeding,2 further enabling Tribes and Tribal entities to serve their communities through uniquely Tribal radio 1 In the Notice of Inquiry in Improving Communications Services for Native Nations by Identifying and Removing Barriers to Entry and Deployment, FCC 11-29 (rel. Mar. _, 2011) (“Native Nations NOI”), we use the term “Native Nations” to refer to federally recognized American Indian Tribes and Alaska Native Villages. Native Nations NOI at 1 n.1. Previously, in both the Notice of Proposed Rule Making and the First Report and Order in this proceeding, we used the term “Tribes” to refer to federally recognized American Indian Tribes and Alaska Native Villages, further noting that “federally recognized Indian Tribes” means any Indian or Alaska Native tribe, band, nation, pueblo, village or community which is acknowledged by the federal government to constitute a government-to- government relationship with the United States and eligible for the programs and services established by the United States for Indians. See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Notice of Proposed Rule Making, 24 FCC Rcd 5239, 5247-48 and n.29 (2009) (“Rural NPRM”), citing Statement of Policy on Establishing a Government-to-Government Relationship with Indian Tribes, Policy Statement, 16 FCC Rcd 4078, 4080 (2000); Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, First Report and Order and Further Notice of Proposed Rule Making, 25 FCC Rcd 1583, 1584-85 (2010) (“First R&O”). In the interest of avoiding confusion regarding the already-adopted Tribal Priority in this proceeding, for purposes of this docket we will continue to use the previously used terminology of “Tribes” and “Tribal Lands.” See also 47 C.F.R. § 73.7000. 2 First R&O, 25 FCC Rcd at 1596-97. 2 Federal Communications Commission _ FCC 11-28 service. We announce our interest in entertaining requests by Tribes that do not possess “Tribal Lands,” as we defined that term in the First R&O in this proceeding,3 for waiver of the tribal coverage requirement of the Tribal Priority adopted in the First R&O,4 and establish specific guidance regarding how those waiver determinations will be made. This will expand the availability of the Tribal Priority to Tribes that wish to provide radio service to geographically identifiable Tribal population groupings located outside Tribal Lands. We also act on those proposals set forth in the Notice of Proposed Rule Making in this proceeding that were not addressed in the First R&O. Specifically, we adopt some of the proposed changes in our procedures for awarding new channel allotments and assignments under Section 307(b) of the Communications Act,5 adopt a rule prohibiting FM translator applicants from proposing to change channels from the non-reserved to reserved bands and vice-versa, and codify our existing standards for determining nighttime mutual exclusivity between applications to provide AM service that are filed
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